Litigation

Dying without a will is called dying “intestate.” Illinois, like most states, has an intestate law that spells out what will happen to the estate of someone who dies without creating a will. Basically, after certain creditors get paid, the assets of the deceased are divided according to the plan set by this law. Here is an overview.

First, if the deceased has a living spouse and children, the spouse gets half and the children get the other half. The children of the deceased divide their half equally. If any child is no longer living, that child’s portion goes to their children (the grandchildren of the deceased).

If there are no children, then their spouse receives the entire estate. If there is no living spouse, but there are children, the children receive the entire estate, divided evenly. Again, if any of the children died before the deceased, their children (the grandchildren) get their parent’s portion.

If the deceased is not survived by a spouse or children (or other descendants), then the estate goes to the closest living relatives. Their parents and siblings each get an equal portion. If only one parent is living, they get both parental portions of the estate. If any sibling is deceased, their children get their portion.

If no parents or siblings are living, the estate goes to the grandparents and their descendants, which are the aunts, uncles and cousins of the deceased. The estate is shared equally between the mother’s and father’s side of the family.

These are the people who the law assumes are your closest relatives, not taking into account what the you actually might have wanted. If you fail to make a valid will during your lifetime, the law steps in and your wishes are largely irrelevant.

If no living relatives exist in any of these categories, then the estate can end up as the property of the county where the deceased was living when they died. This is probably why some people say that the state takes your property if you don’t make a will. It’s not entirely true, but in a rare case it is possible.

Written by Michael Helfand

I don’t blame them really, but every day people lend friends or loved ones money on a verbal promise that they will be paid back.  And if they don’t pay you back, the verbal promise is where all of the trouble starts.

In any lawsuit, you have the burden of proving everything you allege.  If your testimony is that money you gave was a loan and the defendant says that it was a gift, who is the Judge to believe?

So if you are going to loan anyone money, no matter their relationship to you and you hope to be paid back some day, you need to put together a promissory note.

It doesn’t have to be that detailed.  “I Joe agree to lend Jane $5,000.  This money shall be considered a loan that needs to be re-paid by January 1, 2014.”  That might not be the greatest example, but if you each sign it then it shouldn’t create confusion as to what the money was for.  Getting it witnessed is even a better idea.  If you Google promissory note sample you’ll find a bunch of free examples.  You don’t need to pay a lawyer to do this properly.

Some people are uncomfortable asking to put the loan in writing because they don’t want to come across as if they don’t trust the other person.  Really??  You are giving them money.  They should be willing to do whatever you want.  It’s not as if you are asking them to do something dumb or illegal.  Can you imagine a bank lending them cash with a verbal promise that they’ll pay it back?  Of course not because that’s not how life really works.

You never lend somebody money or do anything else in life with the thought that you are going to have to sue them one day.  But at the same time, you prepare for the worst case scenario so there is no confusion as to what is really agreed to.  It’s just a smart way to live life and your only way to win a lawsuit if it comes to that.

Written by Michael Helfand

I’ve been somewhat stunned of late by the number of calls I’ve received where someone is alleging a breach of contract.  When I ask them if there is a termination clause, I’ll often hear that there is not.

Since I don’t yet have the contract in front of me, I ask them to look for a specific paragraph while we are talking on the phone.  This is usually when I hear that they don’t have a copy of the contract, but they are pretty sure that there is no termination clause.

Unfortunately you can’t sue someone based on what you think you signed.   You need an actual copy of the contract.

My advice is that before you sign anything, make a copy for yourself.  After you sign, ask for a copy with their signature and yours on it as well and keep it in a safe spot.  Hopefully you never need it, but if you do you’ll be able to make an informed decision with an attorney.

If you are an employee, a copy should be kept in your employment file which under Illinois law you have a right to see at your request.

Big picture is that you can’t file a contract lawsuit without the actual contract itself.  If you don’t have a copy you will be forced to pay a lawyer to file a suit asking a Judge to make the other person turn over a copy to you.  That’s wasted time and money and certainly opens up the possibility of fraud claims.

And if someone won’t let you make a copy or won’t provide you with one, that kind of lets you know ahead of time what type of person or business they are and it’s probably a warning sign not to get involved with them at all in the first place.

Written by Michael Helfand

A few months ago, a caller contacted us looking for a referral to a Chicago legal malpractice lawyer.  The gist of the case is that the family hired a personal injury attorney who settled a case, but did not pay the settlement money to the right person.  So we talked to the caller and connected them with a law firm that is willing to sue other attorneys.

As hypocritical as it may be, not many lawyers will sue someone else in their profession.  And before they do, you have to make sure they don’t have a conflict of interest.

The typical conflict of interest happens when one person knows another.  So before you tell your whole story, your first question should be, “Do you have a conflict in suing Tom Smith (or whoever the law firm is)?”  If they tell you that they know them, you should stop talking and look elsewhere.

In this case, the firm I recommended did not have a conflict of interest.  But what struck me as very odd is that the defense team, that was put together by the legal malpractice insurance company, included a guy who heavily promotes himself as someone that can represent plaintiffs.  In other words, if you call him and tell him your story, you are at risk of divulging everything to the insurance company.

To me this is a huge conflict of interest.  None of the lawyers we recommend play both sides of the fence.  They either represent plaintiffs or they represent defendants.  These firms that try to do it all in my opinion are not acting in the best interests of their potential clients and should make clear on their website that they represent certain insurance companies.

So the 2nd question you should ask a plaintiff’s attorney is “Do you represent insurance companies in these cases?”  Again, if the answer is yes, you should move on.

Remember, you have to look out for you.  These are questions that if you don’t ask, no one else will.  And if you find out about a conflict when it’s too late, you may have damaged your case.  If you aren’t sure about what questions to ask or who to hire, that’s what we are for.  We are happy to help guide you at any time.

Written by Michael Helfand

Collecting a debt can be frustrating when the person who owes you won’t even respond, let alone pay you back. If you own a small business, collecting can be essential to keeping your doors open.

There are different ways an attorney can help you get the money you’re owed. They might start by trying what you’ve tried – sending a letter, for example. Often, when it comes from your attorney rather than you, it’s enough to motivate the debtor to pay up. When that doesn’t work, a good debt collection attorney should move right to the next step and file a lawsuit. If they can get a judgment in your favor (a court ruling that you are owed the money) then there are things you can do to force payment.

Debt collection attorneys often send notice to the debtor, detailing the history of the debt and most importantly giving a deadline for payment. The letter often says that legal action will be taken if the debt is not paid by the deadline. If there is no response, or a less than ideal response, your attorney shouldn’t hesitate to file a lawsuit demanding payment. If you’ve had a debtor who has been ignoring you, this might get their attention. And even if it doesn’t, you can still move forward without their response. If they fail to respond to your lawsuit within a certain amount of time, you can win by default. The judge will rule in your favor.

After a judge has issued a judgment in your debt collection case, there are steps you can take to collect your money. Wage garnishment, putting a lien on property or having the debtor’s bank pay you from the debtor’s bank account are possible options. For example, wage garnishment allows you to take up to a percentage (usually 15%) of the debtor’s pay. The employer deducts the wages, and the amount has to be approved by a judge. If you don’t know anything about the debtor, your attorney can help you go through the court to discover what assets a debtor has, where they work, etc.

Don’t assume that you’re out of luck because someone owes you money and they refuse to pay or they claim they don’t have the money to pay. Debt collection attorneys often charge a contingency fee, which means that you pay them a portion of what they’re able to recover for you. This also means you don’t have to pay anything up front, and there is no fee if they aren’t able to get you your money. Some debt collection attorneys will charge hourly. It depends on the debt you’re owed and who owes you. Either way, an initial consultation should be free and it’s a great way to learn more about these options.

Written by Michael Helfand

There are several ways in which an investor might become the victim of illegal broker activity. It can be easy to invest your money with a professional and then pay little attention to the details as the months and years go by, but unfortunately there are brokers who take advantage of their clients and put their clients’ money at risk.

One common violation is when a broker looks out for their own interests rather than their clients’ interests, usually because they are more concerned about boosting their commission than doing what’s in your best interest. If a broker pushes an investment product on you because it gets them a higher commission, or if they excessively trade in order to earn more commission and fees (“churning”), it’s considered a breach of their fiduciary duty. This is the duty they have to put your interests first. If there is a violation, and you suffer financial loss as a result, you can bring a claim against them and/or their brokerage firm.

Although some securities fraud cases end up in court, many are handled in arbitration. You likely agreed to arbitration when you signed on for an account with your broker. This means that you will file a claim with the Financial Industry Regulatory Authority (FINRA). Arbitrators hold hearings and make final decisions much like a judge. Your best bet is to hire an experienced Illinois securities fraud attorney to represent you during arbitration. The broker will most certainly have a lawyer on their side.

If a broker promises or guarantees a certain rate of return on an investment, it can be fraudulent misrepresentation. If a broker puts your money in riskier investments than what you authorized, you might have what’s called a suitability claim. Both of these are additional instances of illegal broker misconduct that can lead to a claim or lawsuit.

It can be difficult for the average investor to identify fraud or other illegal activity being committed by their broker. If something doesn’t seem right, look into it by talking to an Illinois securities fraud attorney. If they know what they’re doing, they should be able to identify whether you’ve been taken advantage of.

If you have further questions about actions taken by your broker, or if you would like to speak with an Illinoissecurities fraud attorney, please contact us.

Written by Michael Helfand

If you have done the work, then you have earned your pay. It’s yours and you have a right to go after it. Many people aren’t sure how to do that, however. There are a couple of options, and our recommendations vary depending on your situation.

We’re talking about unpaid regular wages, when your paycheck is short or you don’t get one at all. We’re also talking about situations where there is a dispute about the amount owed. This can be regarding overtime, vacation pay, commissions or other compensation.

One factor is the amount of money you are owed. For small amounts of unpaid compensation, we might recommend that you start by filing a claim with the Department of Labor. They have a system in place to help workers get paid. This is a good idea for small amounts because you don’t want to end up paying an attorney more than what you’re owed in the first place. The Department of Labor cannot force your employer to write you a check, but they will help you for free.

The other option is to sue your employer for the amount that you’re owed. The first step on this path is talking to an experienced employment attorney. You want advice from someone who has handled hundreds of unpaid wage claims in the past. Some attorneys who handle wage claims charge a contingency fee, which is a percentage of what you are able to get from your employer. If you lose your case, you pay nothing. Another type of fee is an hourly fee, which is agreed upon by the attorney and client. Make sure you talk through fees with your lawyer before they start working on your case.

Let us know if you have any questions about unpaid wages and how to get what you’re owed. We’ll talk to you about it for free.

Written by Michael Helfand

See also: Are you owed commissions in Illinois? That may be up to your employer

A girl’s father is suing the Chicago Board of Education claiming that his daughter’s teacher didn’t do enough to prevent her rape that occurred last spring. The lawsuit says that her teacher noticed her leaving school property with a stranger at the start of the school day, and was suspicious enough to take several pictures of the girl and the stranger, but did nothing further. The girl’s abductor took her away from school grounds and later raped her. The teacher supposedly didn’t come forward with the information she had until that evening when she told the girl’s parents.

While rape is a criminal issue, and the suspect in this case might be facing charges, the father has filed a civil lawsuit. He is suing the school for failing to uphold the duty of care that he claims his daughter was owed. When kids are in school, the school staff and administration have certain obligations for keeping them safe. If they don’t, and a child is injured, parents can sue.

Unfortunately, this is not the first case of its kind. We have spoken with many individuals and families who have experienced similar tragedies. When people call us with similar circumstances – a rape that happened because a third party wasn’t upholding their duty of care (like the school in the above case) – we refer them to the same attorneys because they have won these cases in the past and we trust that they’re the right lawyers to be taking on these cases.

The basis of the cases we see is the same – the victim or their parents are suing a property owner, school district or other caretaker who was supposed to provide some protection and failed to do so. In this case it was the girl’s teacher. In some cases, it might the owner of a parking lot who didn’t replace broken lights and created an opportunity for criminal activity; or a hotel that didn’t make sure its rooms were secure against break-ins; or a daycare that didn’t screen its employees and hired someone with a record of criminal sexual abuse.

Sadly, this happens often enough that we consider it a niche area of law, meaning there are attorneys who have specific experience in this area. This is who we recommend if you are considering a lawsuit. The attorneys we refer these cases to not only are good at what they do, but they understand the seriousness of the situation and are sensitive to what the victims and families are going through. We believe both of these qualities are important to a victim and their family.

As with any injury lawsuit, there is no charge for a consultation and no fee at all unless you win. If you need a referral or have questions about whether you might have a civil lawsuit after a rape or other sexual abuse, please contact us.

A high-low agreement is a form of settlement, made before or during trial, in which both sides agree to high and low limits as to what the case will be worth. The parties are agreeing to put limits on the jury verdict.

In a high-low agreement, each side has the chance to minimize their risk. For the plaintiff, they get the benefit of knowing that they’ll get paid either way, whether they win or lose. For the defendant, they get the benefit of avoiding a runaway jury award, which can be extremely high.

In order to get these benefits, each sides gives a little. The plaintiff is agreeing to not take a huge jury award, and the defendant is agreeing to pay even if the jury says they win and don’t have to pay anything.

These agreements are just one type of settlement. In this type, the jury still deliberates and comes back with a decision. If the jury’s decision is outside of the limits, then the agreement comes into play and the verdict doesn’t apply. In a typical settlement, the parties come to an agreement on a settlement amount and the case is over without going to the jury.

High-low agreements come in many forms and appear in many different types of cases. This is just a general overview. If your attorney is suggesting a high-low agreement in your case, make sure you understand the reasons behind it and why it would or would not be a good idea in your circumstances. In any settlement situation, make sure your attorney is suggesting the agreement because it is in your best interest and not because it guarantees that they’ll get paid. A good attorney should be willing to take your case to trial if need be, and they should have the resources to do so.

A reader asks:

I am looking for a Chicago lawyer to help me get a commission of more than $10,000 that my employer owes me from some sales I have made.  They say I won’t get it because I took a new job and their company policy is that you have to be employed at the time a commission is due.  That seems unfair.

It is unfair, but under the Illinois Wage Pay and Collection Act, employers are allowed to set their own policies as to when commissions can be earned and paid.  It’s completely legal for them to say you have to be an employee to get your money.  We’ve seen many other situations where an employee doesn’t get paid until the customer pays.  That too unfortunately is legal as well.

So to determine whether or not you will get paid a commission, we have to see what policy your employer has.  They can’t just change it on the fly and if it’s not in writing then there is a good chance that it doesn’t actually exist.

My advice to any sales person is to get clarification in writing before you start performing work.  Otherwise you may find yourself at their mercy.

But whatever you do, don’t assume that you are owed nothing.  We will always give you a free consultation to determine if there are any loopholes or rights that you have and will of course do whatever we can to make sure that you get paid.  Often we find that other violations are occurring that entitle you to your money in the end.

I don’t know of very many people that enjoy having to go to court and testify.  In fact, the only people who really like it are expert witnesses who get paid for their time being there.  Otherwise almost every witness, plaintiff or defendant I’ve ever met would rather be somewhere else.  That said, if you have to do it, I’m sure it is made easier if you know what to expect.  I’m surprised how many lawyers don’t prepare their clients about what is going to happen and how to approach the day.  And if you are just a witness and not part of the case you can bet that no one is going to give you advice.  So for those that do have to go to court in Illinois to testify, here are some things to know:

1. It’s not very much like what you see on TV in that it’s very boring, doesn’t happen fast and in most cases a witness is just a piece to the puzzle, not the reason everyone is there.
2. What is like TV is that there will be a Judge, a court reporter, security, lawyers for each side and in some cases a jury.
3. There is no dress code per se, but you can’t wear a hat or messy clothing and you wouldn’t want to.  That doesn’t mean that you have to wear a suit, but you should look nice.  No shorts, no t-shirts is a good rule of thumb.  No open toed shoes are another.  For men, a collared shirt and khaki pants is usually acceptable.  For women, a conservative top and long skirt or pants works.
4. It may seem obvious, but your job is to just be honest.  Don’t embellish or say what you think the lawyer asking questions wants to hear.  It’s the job of an attorney to ask the right questions.  Your job is to just answer them truthfully, not figure out what he/she wants to hear.
5. Just answer the question asked.  The worst thing a witness can do other than lie is to ramble on and on.  Most questions are yes or no.  If they require an explanation, again the attorney can ask for one.  For example, if a lawyer asks you, “Were you at the 7-11 on June 1^st when it was robbed?” you should say “yes”, not “I was because my wife had asked me to go and pick up some ice cream because she was pregnant at the time really was craving chocolate chip which is her favorite.  Anyway, I saw this guy with a gun . .. ”  When you add in extra information it drags the process out, frustrates the Judge and doesn’t help anyone.
6. There is no reward for finishing fast.  Your answers are under oath.  So before you answer, make sure you understand what the question is.  If you don’t understand the question, tell the lawyer that asked it that you are not sure what they mean.  It’s their job to ask a clear question.  If you need a moment to think of your answer or how to say it, that is fine too.
7. There is a court reporter taking down everything that is said.  She can only get down one person at a time.  So if the lawyer is asking a question, even if you know what they are asking, let them finish the whole question before you answer.  And to the best of your ability, talk slowly or at least in a normal speech pattern.
8. If you hear one of the lawyers object to a question you should stop talking and wait for the Judge to instruct you on whether or not to answer.
9. There may be times when the two lawyers and the Judge are having a side conference or when an attorney takes a five minute break or something else happens.  Bottom line is that it’s not exciting and don’t expect it to be.
10. While it may be nerve racking for you to testify, the reality is that unless you are in a high profile case that is being covered by the media, the only people that care about what’s going on are the parties to the case.  So relax and just focus on the truth.
11. Most lawyers are really nice.  It’s possible that one of the attorneys will be aggressive in questioning you, but the Judge will not let them bully you.  And if there is a jury, they don’t want to look like jerks so usually they will be nice even if they are trying to poke holes in what you are saying.
12. If you are a plaintiff or defendant you should be at the court hearing the whole time.  If you are a witness and testifying by a subpoena (e.g. you have to be there per court order), you can leave usually when your testimony is done.  You will always be subpoenaed for the start of the day, but often don’t testify until the afternoon.  Many attorneys will tell you when they’ll need you and often will let you be “on call” as long as you are near by.  Just ask.
13. Every case and witness is different, but most get off the stand after an hour or so.
14. If you have a health issue, let the Judge know.  So if you have a bad back, ask the Judge if you can stand as needed.  If you need to take a drink of water, do it.  And by all means, if you need to use the bathroom, ask the Judge if you can take a break.
15. Finally, when your testimony is done, there is still a chance you could be recalled to testify again.  You shouldn’t discuss the case with anyone related to it (e.g. the plaintiff, a lawyer, etc.) until the case is over.  But don’t stress, almost every time you get off the witness stand you are done forever.

Hopefully these tips help.   And remember, it could be worse.  You could have jury duty!

One of the biggest reasons people are hesitant to hire a lawyer in Illinois is that they “aren’t the suing type.”  It’s almost as if people feel that they need to apologize for calling a law firm to seek help.

I’m not sure what the suing type is.  I suppose my callers are thinking of others who they think will sue anyone for any reason.  I suppose those people are out there, but I hardly ever see them and I’ve talked to more than 200,000 people in 11 years of running our Illinois lawyer referral service.

I’m certainly not the suing type.  I once had to sue a landlord to get my security deposit back, but that was in the 1990’s.  I did file a lawsuit in 2004 against the guy that sold me my Evanston house without disclosing that any time it rained sewage would seep in to the basement.  Other than that I’ve been lawsuit free for eight years.

So I don’t look for trouble, but when I’m wronged and can’t work things out on my own, like anyone else I have to decide if going to court is worth it.

I would assume the suing type will sue anyone, any time.  That’s not a good long term strategy because if you do ever have a legitimate case, your credibility would be hurt because you are so litigious.

If you’ve been wronged, you just need to figure out if getting a lawyer is worth it to you.  But never feel the need to apologize.  When you are seeking legal help for the right reasons you are doing exactly what you should do.